14.

1: Arraignment
Proceedings Where Jail May Be Imposed
Checklist
(Use in all cases involving DWI, Reckless Driving, and Driving on a Suspended
or Revoked License; all criminal cases with a mandatory jail sentence; and all
cases where the judge has reserved the right to impose a jail sentence.)

_____ 1. Call the case (by saying the name of the case, the case number, and the date).

_____ 2. Ask the defendant to stand.

_____ 3. State the defendant’s name as it appears in the court file and ask the defendant if it
is accurate. (If necessary, amend the court documents.) Have the court clerk
confirm the defendant’s address privately, but do not read the address in open court.

_____ 4. Inform the defendant of his or her constitutional rights:

_____ The right to bail if the defendant was arrested and remains in custody;

_____ The right to see, hear, question, and cross-examine the witnesses who testify
against the defendant at trial;

_____ The right to call witnesses to testify for the defense and to have them
subpoenaed and required to appear, at no cost to the defendant;

_____ The right to assistance of counsel at every stage of the proceedings;

_____ The right to representation by a court-appointed attorney if the defendant is

indigent;

_____ The right to remain silent;

_____ That any statement made by the defendant may be used against him or her;

_____ The right to testify at trial; and

_____ That if the defendant testifies at trial, he or she will be subject to cross-
examination.

_____ 5. Verify that the defendant understands these rights.

_____ 6. If the defendant is not represented by counsel, can afford counsel, and wants an
attorney, reschedule arraignment for another date within a reasonable amount of
time (such as one week) to allow the defendant time to hire an attorney.

_____ 7. If the defendant wants an attorney, but claims that he or she cannot afford one,
determine whether the defendant is indigent.

_____ If yes, appoint counsel.

_____ If no, the defendant is not entitled to appointed counsel.

_____ 8. If the defendant wants to appear pro se (without an attorney), determine whether the
defendant is knowingly, voluntarily, and intelligently waiving counsel.

_____ Inform the defendant of the right to counsel and of the possible disadvantages
of self-representation.

_____ Decide whether the defendant understands the consequences of waiving

counsel and whether he or she is doing so voluntarily (without threats or
coercion).

_____ If the defendant’s waiver of counsel is knowing, intelligent and voluntary,

have the defendant sign a Waiver of Counsel form, Criminal Form
9-401A.

_____ 9. If one has not been provided previously, provide the defendant with a copy of the
criminal complaint (or citation).

_____ 10. Tell the defendant what the charges are.

_____ 11. Read the applicable ordinances aloud.

_____ 12. Inform the defendant of the maximum penalty and mandatory minimum penalty
for each offense charged:

_____ If no specific penalty is provided for the offense, inform the defendant of the
penalty for a petty misdemeanor: up to 90 days of jail and/or a fine up to
$500.

_____ For DWI, read the maximum and mandatory minimum penalties for a first,
second, and third offense.

_____ 13. Explain the different pleas and their possible consequences.
_____ 14. Ask the defendant to state his or her plea and enter the plea on the record. If the
defendant refuses to plead, enter a plea of not guilty. If the defendant’s plea is:

_____ Not guilty, set the case for trial as soon as possible and remand the defendant
to custody, release on the defendant’s own recognizance, or release with bail
and set conditions.

_____ Not guilty by reason of insanity, or guilty but mentally ill, transfer the
defendant to the district court.

_____ Nolo contendere (no contest), make sure that the plea is voluntarily made,
that the defendant realizes the plea will have the same effect as a guilty plea,
and that the defendant understands the consequences of the plea. Question the
defendant personally, even if he or she is represented by counsel.

_____ Determine whether the plea is of the defendant’s own free will,
whether it is made with a full understanding of all rights and possible
consequences, and whether it was induced by threats or promises
(other than promises made as part of a plea agreement).

_____ Ask the defendant personally whether the plea is voluntary and
whether the decision to plead no contest is the result of prior
discussions between the prosecutor and the defendant or the
defendant’s attorney.

_____ Advise the defendant that if he or she is not a U.S. citizen, the plea
may have an effect on his or her immigration or naturalization status.
If the defendant is represented by counsel, the court must determine if
the defendant has been advised by counsel of the immigration
consequences of the plea.

_____ Use Criminal Form 9-406A (Guilty Plea Proceedings) as a checklist to

ensure the plea is voluntary and otherwise acceptable and proper.

_____ Guilty, make sure that the plea is voluntarily made, that the defendant realizes
the consequences of the plea, and that there is a factual basis for the guilty
plea. Question the defendant personally, even if represented by counsel.

_____ The factual basis may be established by simply asking the defendant
“What did you do that makes you believe you are guilty of this
offense?” The defendant’s answer must establish every element of the
offense, including general or specific criminal intent.

_____ The plea must be of the defendant’s own free will, with a full
understanding of all rights and possible consequences. The plea must
not have been induced by threats or promises. Ask the defendant
 personally whether the plea is voluntary and whether the decision to
plead guilty is the result of prior discussions between the prosecutor
and the defendant or the defendant’s attorney.
_____ Advise the defendant that if he or she is not a U.S. citizen, the plea
may have an effect on his or her immigration or naturalization status.
If the defendant is represented by counsel, the court must determine if
the defendant has been advised by counsel of the immigration
consequences of the plea.

_____ Use Criminal Form 9-406A (Guilty Plea Proceeding) as a checklist to

ensure the plea is voluntary and otherwise acceptable and proper.

_____ 15. Determine whether a plea of guilty or no contest is acceptable.

_____ Review the plea agreement, if any. It must be in writing. (See Criminal Form
9-408A.)

_____ If acceptable, sign the agreement.

_____ If the plea is accepted, order a presentence investigation and report or go

directly to sentencing.

_____ If not acceptable, allow the defendant to withdraw a plea of guilty or no

contest.

_____ If the plea is not acceptable, enter a plea of not guilty, set the case for trial as
soon as possible, and remand the defendant to custody, release on own
recognizance, or release with bail and set conditions of release (if not already
done).